"Plaintiffs' costs, not to be enforced without leave; legal aid taxation."
This is the standard form of order against a legally-aided litigant but its effect is rarely considered.
In Parr v Smith 26 January 1994, the Court of Appeal examined the statutory basis for this order and found two limitations. The first of these is that it cannot be enforced after six years, and the second is that the plaintiff must show new circumstances or information which could not have been obtained with reasonable diligence when the order was actually made.
The case is not widely reported but it seems as though litigants should seek a different form of order against those opponents who are legally
Under the Legal Aid Act 1988 the liability of a legally assisted party shall not exceed the amount which it is reasonable for them to pay having regard to all the circumstances, including the parties' financial resources and their conduct in connection with the dispute.
This limitation only applies in respect of costs incurred during the period when a person was in receipt of legal aid. The Legal Aid (General) Regulations 1989 provide the mechanism for determining what is reasonable.
By regulation 127 the court may postpone or adjourn the determination or may refer it to a master or registrar. Regulation 128 allows that the assisted party may be orally examined.
Once liability is determined, payment may be limited to a particular amount, the court may order payment by instalments and it can suspend payment, either for a specified period or indefinitely.
Regulation 130 contains the limitations that are mentioned above.
In future, where it is thought that a legally aided opponent may be able to contribute to the client's costs, what order should be sought?
Two points need to be noted. First of all there should be no limitation on the enforcement of an order for costs incurred while the opponent was not in receipt of legal aid.
For the period when they did have legal aid the order should provide "the determination of the amount of the defendant's liability for the plaintiff's costs to be referred to the master/district judge" unless the trial judge can deal with the determination at the time of making the order.
In most cases there will be no practical difference – where the defendant has some means the right form of order may be vital to the otherwise successful client.
Christopher Wilson is a barrister at Goldsmith Buildings, Temple.Munby
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